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Liberty Mutual Insurance Co. v. OSI Industries7/21/2005
e policy is untenable under the law. We cannot ignore the fact that the insurance policy about which Liberty Mutual now complains was a policy that Liberty Mutual authored and sold to OSI and Beltec. We disagree with Liberty Mutual that to enforce the very words that it chose to incorporate as a part of its insurance policy would be a violation of public policy. We decline to reverse on this non-meritorious issue.
Fourth, Liberty Mutual claims that OSI is not and has never been entitled to a defense by Liberty Mutual because the events for which OSI sought coverage occurred after OSI's policy had expired with Liberty Mutual. As this Court has previously held, "If the pleadings reveal that a claim is clearly excluded under the policy, then no defense is required." Ill. Farmers Ins. Co. v. Wiegand, 808 N.E.2d 180, 184 (Ind. Ct. App. 2004) (emphasis added), trans. denied. OSI was insured by Liberty Mutual from January 1, 1990, until December 31, 1991. Thermodyne's complaint detailed alleged wrongdoing by OSI regarding the "Temperfect Oven" in 1990 and 1991. See Appellant's App. p. 383-85 (detailing that in April 1990, OSI and McDonald's planned to develop their own oven based upon trade secrets acquired from Thermodyne; Liebermann, while still an employee of Thermodyne, shipped prototypes of the "Thermodyne Oven" to OSI without Thermodyne's knowledge in May 1990; Liebermann resigned from Thermodyne and secretly began working for OSI in July 1990). In addition, there are allegations of wrongdoing that do not carry a precise date. See id. at 386 (describing an article discovered in 1993 by Thermodyne in a "back issue" of a trade magazine that detailed the "Temperfect" oven). In sum, the pleading in the underlying Thermodyne litigation did not show that the claims were clearly excluded under OSI's policy with Liberty Mutual. Thus, Liberty Mutual cannot now assert that no defense was required.
III. OSI's and Beltec's Attorneys' Fees in Declaratory Judgment Action Liberty Mutual argues that the trial court erred in awarding OSI and Beltec their attorneys' fees plus statutory interest-a total of $320,435.54-for prosecuting the declaratory judgment against Liberty Mutual. Even OSI and Beltec concede that the general rule in Indiana is that each party involved in litigation must pay its own attorneys' fees. See Ind. Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1093 (Ind. Ct. App. 1992). OSI and Beltec contend that this Court should nonetheless change the law in Indiana by adopting a dissent to the denial of transfer written by Justice DeBruler in 1995 in which he proposed an exception to the American Rule in declaratory judgment actions concerning automobile insurance policies. See Mikel v. Am. Ambassador Cas. Co., 652 N.E.2d 503, 504-507 (Ind. 1995) (DeBruler, J., dissenting).
The rule that each party pays its own fees is the so-called "American Rule." Kikkert v. Krumm, 474 N.E.2d 503, 504-05 (Ind. 1985). Put another way, attorneys' fees are not allowable in the absence of a statute or some agreement or stipulation authorizing such an award. Plummer, 590 N.E.2d at 1093. Our supreme court has consistently said that Indiana follows the "American Rule." See State Bd. of Tax Comm'rs v. Town of St. John, 751 N.E.2d 657, 658-59, 662 (Ind. 2001); Noble County v. Rogers, 745 N.E.2d 194, 199 n.6 (Ind. 2001); Kikkert, 474 N.E.2d at 504-05; Trotcky v. Van Sickle, 227 Ind. 441, 445, 85 N.E.2d 638, 640 (1949) (observing that the "general rule requires each party to the litigation to pay his own counsel fees"). We may not overrule the decisions of our supreme court. State v. Virtue, 658 N.E.2d 605, 609 (Ind. Ct. App. 1995), reh'g denied, trans. denied. Under Indiana precedent, we r
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